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TMI Blog2018 (12) TMI 1980X X X X Extracts X X X X X X X X Extracts X X X X ..... high, when the issue decided therein is not covered by any provision of law or by an earlier precedent. The Courts subordinate to the one which authored the precedent, have to religiously follow it, till any legislation is made to the contrary, in accordance with law. If the issue is covered by a provision of law, the precedent would retain its strength, if the provision is taken into account and is interpreted. The judgment then becomes a guiding tool for the interpretation or understanding the provision of law. The endeavor of Hon ble Supreme Court, for decades together was to ensure transparency in Government services and public life, and even new statutory agencies, like CVC, have been brought into existence in compliance of the directions of the Supreme Court. Radical changes were brought as regards the functioning of CBI is to ensure that no laxity is exhibited in the context of dealing with the cases where allegations of corruption or misconduct of serious nature exist. The applicant is facing serious allegations. Whatever be the reasons for default in issuing charge sheet, that should not become an advantage for the applicant to get reinstated into service. The respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 23.08.2016 issued by the DoP & T, the suspension beyond 90 days became untenable, inasmuch as neither in the departmental proceedings nor in the criminal case charge sheet was filed. Reliance is also placed upon orders passed in some OAs, decided by this Tribunal. 4. The respondents filed a counter affidavit resisting the OA. It is stated that the allegations against the applicant are very serious in nature, involving crores of rupees. It is stated that the investigation in criminal case is in progress and unless that is completed, it would be premature for the department to frame the charges. The respondents further pleaded that the judgment in Ajay Kumar Choudhary's case (supra) cannot be said to be an authority for the proposition that the suspension of an employee would come to an end on expiry of 90 days if no charge sheet is filed, and at the most it is an observation for guidance of the department to expedite the proceedings. According to them, this is evident from the fact that the Hon'ble Supreme Court itself declined to intervene with the order of suspension in that case, though the charge sheet was filed not only beyond 90 days from the date of initiation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became the subject matter of the legislative exercise and judicial pronouncements. Rule 10 of CCS (CCA) Rules, 1965 deals with the suspension of an employee of the Central Government Services. Sub-rule (1) thereof reads as under:- "(1) The Appointing Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension- (a) where a disciplinary proceeding against him is contemplated or is pending; or (b) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial." (Remaining part of the sub-rule (1) is omitted as not necessary for the purpose of this case.) 9. Recently, the rule making authority amended Rule 10, by adding sub-rule (7). It reads as under:- "(7) An order of suspension made or deemed to have been made under sub-rule (1) or (2) of this rule shall not be valid after a period of ninety days unless it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Judgment, the Hon'ble Supreme Court observed as under:- "21. We, therefore, direct that the currency of a Suspension Order should not extend beyond three months if within this period the Memorandum of Charges/Chargesheet is not served on the delinquent officer/employee; if the Memorandum of Charges/Chargesheet is served a reasoned order must be passed for the extension of the suspension. As in the case in hand, the Government is free to transfer the concerned person to any Department in any of its offices within or outside the State so as to sever any local or personal contact that he may have and which he may misuse for obstructing the investigation against him. The Government may also prohibit him from contacting any person, or handling records and documents till the stage of his having to prepare his defence. We think this will adequately safeguard the universally recognized principle of human dignity and the right to a speedy trial and shall also preserve the interest of the Government in the prosecution. We recognize that previous Constitution Benches have been reluctant to quash proceedings on the grounds of delay, and to set time limits to their duration. How ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal trial is pending. There cannot be any dispute regarding the power or jurisdiction of the State Government for continuing the first Respondent under suspension pending criminal trial. There is no doubt that the allegations made against the first Respondent are serious in nature. However, the point is whether the continued suspension of the first Respondent for a prolonged period is justified. (emphasis supplied) 21. The first Respondent has been under suspension for more than six years. While releasing the first Respondent on bail, liberty was given to the investigating agency to approach the Court in case he indulged in tampering with the evidence. Admittedly, no complaint is made by the CBI in that regard. Even now the Appellant has no case that there is any specific instance of any attempt by the first Respondent to tamper with evidence." It is evident that the Hon'ble Supreme Court upheld the power of Government to continue the suspension, but the interference was mostly on the facts, namely, that the suspension was in force for six years, and not on the ground that charge memo was not issued within 90 days from the date of order of suspension. 14. The judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have called upon the petitioner to justify its extension by passing a reasoned order. It was not for the tribunal to step into the shoes of the administration, and to take a decision - which only the administration can take, on the issue whether the suspension of the charged officer should continue, or not. The jurisdiction of the tribunal is confined to examining the administrative action of the government on the well established objective principles of judicial review and, where it considers necessary, to require the government to perform its statutory obligation to take a decision. In view of the aforesaid, the impugned order cannot be sustained and is, accordingly, set aside." Recently, vide order dated 22.03.2018 passed in OA No. 3634/2017 in Jagbir Singh vs. Govt. of NCT of Delhi, this Tribunal observed as under:- "77. Shri R.N. Singh tried to argue that the 90 days period mentioned in Ajay Kumar Choudhary (supra) is not sacrosanct and by relying upon the judgment of the Hon'ble High Court of Delhi judgment in the case of Dr. Rishi Anand (supra). There cannot be any dispute that there could be certain situations where it may not always be possible to issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed Jurist devoted considerable time in their respective treatises, to evolve the principles or doctrines in this regard. Salmond on Jurisprudence has this to say about the ratio deci dendi:-(See Salmond on Jurisprudence, Twelfth Edition, page 178) "The ratio decidendi, as opposed to obiter dicta, is the rule acted on by the court in the case. But since the common law practice is that courts should explain and justify their decisions, we normally find the rule which is applied actually stated in the judgment of the court. Later courts, however, are not content to be completely fettered by their predecessors, and wisely so: for the development of the common law has been an empirical one proceeding step by step. When a court first states a new rule it cannot have before it all possible situations which the rule as stated might cover, and there may well be situations to which it would be quite undesirable that it should apply. If such a situation should come before a later court, that court might well take the view that the original rule had been too widely stated and must be restricted in application. Or again the original court when stated in a rule is neither concerned nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CCS (CCA) Rules, 1965 was interpreted or any portion of it was struck down, denuding the Government of the power to continue the suspension beyond 90 days if no charge sheet is filed. 23. The authority of a precedent and its binding nature is certainly high, when the issue decided therein is not covered by any provision of law or by an earlier precedent. The Courts subordinate to the one which authored the precedent, have to religiously follow it, till any legislation is made to the contrary, in accordance with law. If the issue is covered by a provision of law, the precedent would retain its strength, if the provision is taken into account and is interpreted. The judgment then becomes a guiding tool for the interpretation or understanding the provision of law. 24. It is not uncommon, though rare that, the attention of a Court is not drawn to the provision of law, and observations are made which do not accord with such provision. Situations of this nature are explained as under:- "A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute, i.e., delegated legislation. This rule was laid down for the House of Lords by Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinguished as obiter dicta and are not authoritative. The task of finding the principle is fraught with difficulty because without an investigation into the facts, as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das' case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das' case was made not only with the consent of the parties but there was an interplay of various factors and the Court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The Court no doubt made incidental observation to the Directive Principles of State Policy enshrined in Art. 38(2) of the Constitution...... 11. Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative. With all respect to the learned Judge who passed the order in Jamna Das' case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument ..... X X X X Extracts X X X X X X X X Extracts X X X X
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